Rivers v. Schlumberger Well Surveying Corp., 7729

• Decision Date: 08 October 1980
• Docket Number: No. 7729,7729
• Citation: 389 So.2d 807
• Parties: Woodrow W. RIVERS, Plaintiff-Appellant-Appellee, v. SCHLUMBERGER WELL SURVEYING CORP., 1 et al., Defendants-Appellees- Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 807

389 So.2d 807

Woodrow W. RIVERS, Plaintiff-Appellant-Appellee, v. SCHLUMBERGER WELL SURVEYING CORP., ¹ et al.,

Defendants-Appellees- Appellants.

No. 7729.

Court of Appeal of Louisiana, Third Circuit.

Oct. 8, 1980.

James A. Cobb, Jr., New Orleans, for defendant-appellee-appellant.

Francis Emmett, New Orleans, George J. Dowd, Chalmette, for defendant-appellant-appellee.

Fuhrer & Flournoy, Leonard Fuhrer, Alexandria, and Rivers & Willson, Larry Rivers, Alexandria, for plaintiff-appellee-appellant.

Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.

CUTRER, Judge.

Woodrow W. Rivers brought this suit under the Jones Act and General Maritime Law against Schlumberger Well Surveying Corporation (Schlumberger), Elevating Boats, Inc. (Elevating Boats) and Meldeans, Inc. (Meldeans) for losses due to injuries received when Rivers fell into a hole, or washout, near the dock where the vessel "Billiot" was berthed. The petition alleged that he was jointly employed by the three defendants as a seaman serving aboard the Billiot. He alleges that each defendant was his employer within the meaning of the Jones Act.

Schlumberger answered and filed a third party demand against Elevating Boats claiming that under the provisions of a contract between Schlumberger and Elevating Boats, Elevating Boats should indemnify Schlumberger for claims such as that of Rivers. Schlumberger also seeks attorney's fees for defending the suit.

Schlumberger states in their brief that Elevating Boats and Meldeans filed a third party demand against Schlumberger seeking indemnity for any liability to Rivers that they might incur. Such demand, however, does not appear in the record and we do not pass on same.

The trial court found Meldeans, but not Schlumberger or Elevating Boats, to be the Jones Act employer of Rivers. Judgment was rendered in favor of Rivers and against Meldeans for $229,000.00 plus medical expenses and $750.00 travel expenses. The trial court did not rule on Schlumberger's third party demand against Elevating Boats.

The issues presented by these appeals are as follows:

(1) Whether Schlumberger was an employer of Rivers at the time of the accident, within the meaning of the Jones Act;

(2) Whether Elevating Boats should be held liable on the ground that Meldeans was the alter ego of Elevating Boats;

(3) Whether Meldeans was liable for Rivers' losses under the circumstances presented;

(4) Whether Rivers can recover from Schlumberger under Louisiana Tort Law;

(5) What disposition should be made of the third party demands of Schlumberger; and

(6) Whether the trial court correctly decided the quantum of damages.

The basic facts are that Woodrow Rivers was captain of the jack-up boat, Billiot. That vessel was owned by Meldeans. It was being used exclusively by Schlumberger, which provided the dock at which the Billiot was berthed. Rivers had been an employee of Elevating Boats until he requested a change of location so that he could be nearer his home. In response to that request, he was transferred to the employment of Meldeans as captain of the Billiot. Meldeans had an agreement with Elevating Boats by which Elevating Boats located rental customers for the two boats owned by Meldeans. For this service, Elevating Boats received six percent of the rentals paid for the services of Meldeans' boats.

On the night of January 28, 1977, plaintiff left his boat to dispose of a can of paint chips which he had scraped from the engine room of the Billiot. He stepped off the stern of the Billiot onto a walkway (approximately 4 feet wide and 100 feet long) which was adjacent to the bank of Bayou Sycamore. Rivers crossed the walkway and proceeded to step onto the bank to empty the can of scrapings. He stepped across the hole and as he applied his weight to his foot on the bank of the hole, the bank gave way, causing him to fall into the hole. By the next morning, he was stiff and suffering pain. This started the medical history which was to culminate in spinal surgery, from which plaintiff has never fully recovered.

Before entering into a discussion of the issues we want to point out that our scope of review in this case is severely limited by federal law and we must confine ourselves to those limits in examining the trial judge's findings. This court, in the case of Hocut v. Insurance Company of North America, 254 So.2d 108, 111 (La.App. 3rd Cir. 1971), writs ref'd, 256 So.2d 292 (La.1972), made the following observation in this regard:

"We deem it proper to point out, before beginning our discussion of the issues herein, that the scope of our review in Jones Act cases is the same as that accorded the Federal appellate courts. Trahan v. Gulf Crews, Inc., La.App., 246 So.2d 280; and cases cited therein. In Gallick v. Baltimore and Ohio Railroad Company, 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618, the Supreme Court of the United States in quoting from Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 defined those limits as follows:

'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572, 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. (54) 68, 63 S.Ct. (444) 451 (87 L.Ed. 610), 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' 321 U.S., at 35, 64 S.Ct. at 412."

With those principles in mind, we proceed with the issues presented herein.

(1) Whether Schlumberger Was an Employer of Rivers at the Time of the Accident.

To recover under the Jones Act, an employee must show that he was a seaman at the time of accidental injury. Rivers' status as a seaman at the time of injury is not disputed herein. The claimant must also establish an employer-employee relationship at the time of the injury. As to whether a claimant may have more than one employer under the provisions of the Jones Act, the recent case of Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir. 1980), the court held as follows:

"A Jones Act claim also requires proof of an employment relationship either with the owner of the vessel or with some other employer who assigns the worker to a task creating a vessel connection, for '(b)y the express terms of the Jones Act an employer-employee relationship is essential to recovery.' Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975). The employer need not be the owner or the operator of the vessel. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). Independent contractors may be liable under the Act, Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 171 (2d Cir. 1973); Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). And a third person who borrows a worker may become his employer if the borrowing employer assumes enough control over the worker. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969). However, even if a seaman is deemed to be a borrowed servant of one employer, this does not automatically mean that he ceases to be his immediate employer's servant for Jones Act purposes. Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975). It may also be possible for a seaman to have more than one Jones Act employer. Id. at 225-26." (Emphasis ours)

Rivers contends that, not only was he an employee of Meldeans at the time of injury, he was also a borrowed employee of Schlumberger at that time. On this basis he seeks to hold both of these defendants jointly liable.

The factors which must be considered in making the determination of the employer-employee relationship between Schlumberger and Rivers are set forth in Norris' Supplement to the Law of the Sea, § 676. They are as follows:

"1. Was there an understanding or agreement by the employers regarding the loan of the employee?

"2. Has the servant assented, either expressly or by implication, to the transfer?

"3. Did the servant perform his work pursuant to direct orders of the asserted employer or was he following mere suggestions?

"4. Did the general employer temporarily terminate its relationship with the servant?

"5. Has the temporary employer furnished the necessary instruments and the place for the performance of the work in question?

"6. Has the employment of the servant by the temporary employer extended over a considerable length of time?

"7. Is the work performed the work of the temporary employer?

"8. Does the temporary employer have the right to discharge the servant?

"9. Is the temporary employer obligated for the payment of the wages of the servant?"

For a discussion and application of these factors, see the case of Ruiz v. Shell Oil Company, 413 F.2d 310 (5th Cir. 1969).

In the case at hand, Elevating Boats was a corporation engaged in the construction and rental of elevated boats to companies who serviced oil well operations. Meldeans was also a corporation who owned two elevated boats which...